O’NEILL v NEW ZEALAND POLICE [2023] NZHC 942

O'NEILL v NEW ZEALAND POLICE [2023] NZHC 942 [27 April 2023]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2022-419-000100[2023] NZHC 942BETWEEN ZANE SIMON O'NEILLApplicant/AppellantAND NEW ZEALAND POLICERespondentHearing: 24 April 2023 (by VMR)Appearances: Appellant in personP Noorland for RespondentJudgment: 27 April 2023JUDGMENT OF VENNING JAppeal against conviction and sentenceThis judgment was delivered by me on 27 April 2023 at 2.15 pm.Registrar/Deputy RegistrarDateSolicitors: Hamilton Legal, HamiltonCopy to: Appellant[1] Following a judge-alone trial in the District Court at Hamilton, Zane O'Neillwas convicted of intentionally failing to comply with the Covid-19 Public HealthResponse (Alert Level Requirements) Order (No. 12) 2021 by attending a gatheringin an outdoor place, namely Claudelands Park, Hamilton, an Alert Level 3 area.1[2] Judge B A Crowley sentenced Mr O'Neill to 40 hours community work.2[3] Mr O'Neill seeks leave to appeal his conviction and sentence. Leave isrequired as the appeals are out of time.[4] Mr O'Neill represents himself. The notice of appeal was filed out of time on13 December 2022, some 57 working days out of time. The respondent opposes leavebeing granted on the basis the proposed appeal is without merit. However, the periodof delay is not extensive and the Police are not prejudiced by the delay. As Mr O'Neillrepresents himself I extend the time for the appeal to be filed.District Court hearing[5] The prosecution called evidence from Scott Middlemiss, a detective in the NewZealand Police; Ian Archbold, a police sergeant; and Olivia Davies, a policeconstable. All had been present at the gathering at Claudelands Park. DetectiveMiddlemiss produced copies of the applicable Orders in force at the time and otherphotographic evidence and exhibits. The other officers had spoken to Mr O'Neill andobtained his details.[6] The evidence called by the Police established that a protest was arranged to beheld at Claudelands Park on Heaphy Terrace, Hamilton at about 11.00 am on Saturday,16 October 2021. The organiser of the protest, a Mr Ferris, was standing on or aboutthe back of a black coloured Toyota Hilux ute with its registration plates taped over.There were large speakers on the back with a banner reading "Hands off our Freedoms& Rights".1 New Zealand Police v O'Neill [2022] NZDC 17936.2 New Zealand Police v O'Neill [2022] NZDC 17887.[7] Mr Ferris addressed the crowd of approximately 1,000 people for about 25minutes. While he was addressing the crowd Mr O'Neill was observed to be standingjust to his side holding a large cardboard protest sign, waving in the direction of thecrowd and also at passing cars on Heaphy Terrace. The sign stated "You can vax theentire planet but you can't feed the starving."[8] After Mr Ferris had finished speaking Mr O'Neill moved towards the WaikatoSettlement Centre on the Boundary Road side of Claudelands Park. The Centre wasbeing used as a Covid vaccination clinic to encourage ethnic communities to bevaccinated as part of the Super Saturday vaccination drive. The Police spoke to MrO'Neill, obtained his details and he ultimately moved on. No charges were laid inrelation to Mr O'Neill's actions after the gathering.[9] When spoken to by the Police Mr O'Neill declined to comment other than tosay he was not aware that Hamilton was an Alert Level 3 area as he does not watchtelevision.[10] Mr O'Neill elected not to give evidence but on a number of occasions madesubmissions to the Judge.The appeal[11] At the outset of the appeal hearing Mr O'Neill sought to challenge theprosecution and conviction referring to his status and the issue of his legal personality.He sought to have the prosecutor identify the defendant. As I advised Mr O'Neill, itis not for him to ask the prosecution questions. Such specious points and argumentsabout living and dead entities and corporations in the context of individuals are a legalnonsense and have been rejected by the Courts in the past.3[12] Mr O'Neill then submitted that he was wrongfully charged. His actions on theday never hurt anyone and no-one lost anything. He notes that outdoor settings werewas advised by the Ministry of Health. He also noted that the Police evidence did notconfirm he had maintained social distancing and that he was wearing a face covering.3 Bracken v R [2022] NZCA 237.Mr O'Neill also submitted there was no evidence from any independent witnesses atthe protest to say that he was part of the organised group. The operation was mainlyabout the man on the back of the black ute. Mr O'Neill says he travelled freely toClaudelands Park in Hamilton. It was his right to travel freely and to express hisfreedom of speech and expression under the New Zealand Bill of Rights Act 1990.[13] Mr O'Neill then submitted that the Ministry of Health were not able to confirmthe existence of Covid-19 and the drive for vacations overlooked the harm thevaccinations had caused.[14] Mr O'Neill also made a submission that there is no correlation between thesummary code and the Covid-19 Public Health response charge. The short answer tothat is that summary code is not an element of the offence. The offence is under s 26(1)of the Act.[15] In his written submissions Mr O'Neill submitted that an order is a disallowableinstrument as defined in the Legislation Act. His submission seemed to be that as adisallowable instrument it was an order that could not be enforced. Mr O'Neill thenreferred to Magna Carta and other District court cases where similar prosecutions wereapparently dismissed.Principles to apply on an appeal against conviction[16] As an appeal against conviction s 232 of the Criminal Procedure Act 2011applies. The Court must allow the appeal if the Judge erred in his or her assessmentof the evidence to such an extent that a miscarriage of justice has occurred or, amiscarriage of justice has otherwise occurred for any other reason. Otherwise theCourt must dismiss the appeal.[17] A miscarriage of justice is any error, irregularity or occurrence in or in relationto or affecting the trial that:(a) has created a real risk the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.[18] A preliminary matter arises. In his notice of appeal Mr O'Neill also referredto the fact he was "incompetent self representing" and he was "not given a chance forcounsel". However, the issue of representation was raised by the Judge in the courseof the hearing. The following exchange was recorded:Q Do you need further advice? I also just want to check with you thatyou know have the right to a lawyer and you do not want to exercisethat right?A I'm happy being me Your Honour.Q. Well that is your complete right and there is no problem with that. Areyou happy with that process which is the traditional process trials takeand I have tried to explain to you why they take that course because itis the police that have to prove the case?A. As long as these questions aren't putting me into a contract I am happywith that.Q. Well you are not - it is not a contractual situation as far as I amconcerned Mr O'Neill. It is a situation you have been charged with acrime and the police are saying they have got evidence that can proveit and we need to find out whether that is right or not.Although not directly relevant, I also note that during the course of the hearing theJudge regularly discussed with Mr O'Neill the types of questions he might wish to askof the Crown witnesses and clarified the position a number of times with Mr O'Neill.Conviction appeal - analysis[19] As noted, the charge Mr O'Neill faced was under s 26 of the Covid-19 PublicHealth Response Act 2020:26 Offences and infringement offences(1) A person commits an offence if the person intentionally fails tocomply with a COVID-19 order.(2) A person who commits an offence against subsection (1) is liable onconviction to,—(a) for an individual,—(i) imprisonment for a term not exceeding 6 months; or(ii) a fine not exceeding $5,000:(b) for any other person, a fine not exceeding $15,000.(3) A person commits an infringement offence if the person does anythingspecified as an infringement offence in this Act or a COVID-19 order.(4) A person who commits an infringement offence is liable to—(a) an infringement fee of,—(i) for an individual, $1,000 or any lesser or equalamount prescribed by regulations made under section33; or(ii) for any other person, $3,000 or any lesser or equalamount prescribed by the regulations; or(b) a fine imposed by a court not exceeding,—(i) for an individual, $3,000 or any lesser or equalamount prescribed by the regulations; or(ii) for any other person, $9,000 or any lesser or equalamount prescribed by the regulations.[20] After hearing the evidence and viewing the photographs and other documentsproduced to the Court as exhibits Judge Crowley was satisfied that at the relevant time,16 October 2021, Claudelands Park, Hamilton and parts of the Waikato region werein Alert Level 3. At the time gatherings of up to 10 people were only allowed forweddings and civil union ceremonies, funerals and tangihana. The gathering asoccurred at Claudelands Park on that day was in breach of the order. Clause 31.1 ofthe Order confirmed that "A person must not attend a gathering in any outdoor placein the alert level 3 area". While there were exceptions, none of the exceptions appliedto Mr O'Neill. By attending the gathering, Mr O'Neill was in breach of the Order.There was no need, as Mr O'Neill suggested there was, for there to be evidence fromwitnesses other than the Police of Mr O'Neill's presence.[21] Mr O'Neill repeated the point he made when initially speaking to the Policethat he did not know it was Alert Level 3, as he did not have a television. But apartfrom the fact ignorance of the law is no excuse, Mr O'Neill acknowledged he hadaccess to the internet and obtained information about the gathering from the internet.He could readily have made himself aware of the relevant alert levels and borderrestrictions. Further, the Judge was entitled to draw an inference from all thesurrounding circumstances that Mr O'Neill deliberately attended to join the protest inopposition to the Government's approach to managing Covid-19, including alertlevels. When the organiser, Mr Ferris, was speaking to the attendees the intent of themeeting must have been immediately apparent to Mr O'Neill. Mr Ferrisacknowledged the gathering was being held in breach of Alert Level 3. There was noevidence that Mr O'Neill sought to leave until the meeting was over. Finally on thispoint, in any event, as noted, Mr O'Neill elected not to give evidence to support hisdefence.[22] No miscarriage arises from the way the trial was conducted or the conviction.Sentence appeal[23] Mr O'Neill also challenged the sentence of 40 hours community work.[24] The issue is whether in the circumstances a sentence of 40 hours communitywork could be said to be manifestly excessive. The 40 hours is the minimum that canbe imposed, if a sentence of community work is otherwise appropriate. The real issueis whether a lesser sentence, such as a fine was the appropriate sentence, having regardto the hierarchy of sentencing levels.[25] The particularly relevant factors in my judgment are that there is no evidenceMr O'Neill was involved in any way in organising the illegal gathering. He was justone of a number (up to 1,000) attendees. The evidence was that the protestors weregenerally well behaved and dispersed after the protest. Mr O'Neill himself waswearing a face covering. Mr O'Neill only seems to have been charged because thePolice spoke to him after and obtained his details. Apart from the organiser and MrO'Neill, few, if any, appear to have been charged. Finally, I note Mr O'Neill has notbeen in trouble with the Police for a number of years.[26] In the circumstances I accept that it could be said a fine would have beensufficient so that the sentence of community work was manifestly excessive.Result[27] The appeal against conviction is dismissed. The appeal against sentence isallowed. The sentence of 40 hours community work is quashed and replaced with asentence of a $100 fine.__________________________Venning J